FAMILY COURT OF AUSTRALIA
| MOLLOY & MOLLOY | [2016] FamCAFC 264 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where the applicant provided an adequate explanation for the delay – Appeal reinstated. FAMILY LAW – COSTS – Where the respondent seeks that the applicant or the applicant’s solicitors pay his costs of the application for reinstatement – Where the circumstances giving rise to the application for reinstatement are the sole responsibility of the solicitors acting on behalf of the applicant – Where there are justifying circumstances for an order for costs to be paid by the applicant’s solicitors – Applicant’s solicitors to pay respondent’s costs fixed at $2,500. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth): r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Molloy |
| RESPONDENT: | Mr Molloy |
| FILE NUMBER: | SYC | 3838 | of | 2014 |
| APPEAL NUMBER: | EAA | 180 | of | 2016 |
| DATE DELIVERED: | 14 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 14 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2400 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Marsdens Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
| SOLICITOR FOR THE RESPONDENT: | GA Lawyers |
Orders
That the Notice of Appeal filed on 18 October 2016 be reinstated.
That the time to file a draft appeal index be extended to the close of business on 21 December 2016.
That Marsdens Law Group pay the respondent’s costs of the application in the amount of two thousand five hundred dollars ($2,500) within 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molloy & Molloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 180 of 2016
File Number: SYC 3838 of 2014
| Ms Molloy |
Applicant
And
| Mr Molloy |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 18 November 2016 Ms Molloy (“the applicant”), seeks to reinstate her Notice of Appeal…
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- Molloy & Molloy [2016] FamCAFC 264
- Case
- [2016] FamCAFC 264
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding whether the appeal should be reinstated and, if so, whether the applicant’s solicitors should bear the costs associated with the application for reinstatement. The court held that the delay was due to the negligence of the applicant’s solicitors, and thus the fault should lie with them. Given the circumstances, the court found justifying reasons to order the applicant’s solicitors to pay the respondent’s costs. The court deemed the amount of $2,500 as reasonable and appropriate for the respondent's costs of the application.
The court granted the application for reinstatement of the appeal and extended the time to file the draft appeal index to 21 December 2016. The court also ordered that the applicant’s solicitors, Marsdens Law Group, pay the respondent’s costs of $2,500 within 28 days. This decision reflects the court’s balanced approach, ensuring that the applicant’s right to appeal is upheld while holding the responsible party accountable for the delay and associated costs.
Orders
Orders of the court
1.
That the Notice of Appeal filed on 18 October 2016 be reinstated.
2.
That the time to file a draft appeal index be extended to the close of business on 21 December 2016.
3.
That Marsdens Law Group pay the respondent’s costs of the application in the amount of two thousand five hundred dollars ($2,500) within 28 days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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